Marital rape gets split verdict by Delhi High Court on criminalisation

Representative Image

A division bench of the Delhi High Court on May 11 passed a split verdict on the issue of criminalising marital rape.

Each of the two judges on the bench delivered differing views on the issue while being unanimous in granting certificate for appealing against the judgment as "it contains a substantial question of law". The bench comprised justices Rajiv Shakdher and C Hari Shankar.

The judgment comes on a batch of petitions that challenged the exception of marriage to the provision of rape under Section 375 of the Indian Penal Code.

As per Exception 2 to the provision, non-consensual sex between husband and wife is not covered under the offence of rape as long as the wife is above 16 years of age.

According to Justice Shakdher, this exception is violative of the fundamental right of equality under Article 14 and the right to life with dignity and liberty under Article 21 and must be struck down as unconstitutional.

Justice Hari Shankar, on the other hand, found that the exception to marriage under offence of rape is based on intelligible differentia and cannot be said to be violative of the provisions of the constitution.

The petitions challenging this exception were filed by NGOs and senior advocates Rebecca John and Rajsekhar Rao were called on by the court to assist it in the capacity of Amici Curiae.

The central government, however, had urged the court to defer the hearing on the ground that the Centre is carrying out a consultative process with the states and stakeholders to review the provision.

The issue has far-reaching consequences and also touches upon the fabric of social and family life, the government counsel had told the high court.

The court, however, refused to defer the hearing as there was no definite timeline available for the consultation process. The court reserved its judgment in February this year.